[discuss] governments and rule of law (was: Possible approaches to solving...)

Milton L Mueller mueller at syr.edu
Mon Feb 24 14:18:20 UTC 2014

While Peter and I disagree on the GAC, and I burst out laughing at its characterization as a "crowning achievment," I do want to say that his is the best and most well-reasoned defense of the currently system I have heard. Certainly it is worth paying attention to, because our objectives are basically the same: to globalize IG while giving states some constructive role.

I would almost be willing to accept the GAC if the bylaw that privileges GAC advice were to be changed. 

That bylaw, which gives GAC advice a special status, allows the GAC (which usually is driven by a very small coalition of 5-eyes governments) to play a game called a "hold up" with the ICANN board. Their advice can disregard the results of the bottom up process and grind the policy development process to a halt while lobbyists or governments essentially renegotiate policy with the board. Interest groups who don't get what they want from the GNSO can then concentrate their efforts on the GAC - which means that they never play for real in the bottom up process to begin with. The GAC process makes a  mockery of the bottom up process and disenfranchises everyone who poured their blood sweat and tears into it. Until and unless the GAC is truly advisory and does not have hold up power or the ability to override bottom up consensus, I can't accept it. 

-----Original Message-----
From: Peter Dengate Thrush [mailto:barrister at chambers.gen.nz] 
Sent: Monday, February 24, 2014 2:57 AM
To: David Cake
Cc: Milton L Mueller; discuss at 1net.org
Subject: Re: [discuss] governments and rule of law (was: Possible approaches to solving...)

This is an excellent debate on a crucial point.

While I completely agree with Milton's description of the way some members of the GAC, and occasionally the GAC as a whole behaves inside ICANN, and also with David's exemplification of that in recent times, I draw a different conclusion than the one reached (or implied, at least) by Milton. 

I see the inclusion of the GAC inside ICANN in an advisory role as one of the crowning successes of ICANN.

Its a global first to have governments in an advisory, not supervisory or regulatory role.
That is an amazing situation for governments to find themselves in.
Its an extraordinary bulwark of the multistakeholder model.
And governments are growing used to their new role.

It is of some concern to me that governments in the GAC may make demands that their national laws would not deliver at home, but I see that can be used to great advantage.
First, it allows rule-making that may be most appropriate in the conditions.
Governments may be unable in their national legislatures for a variety of local conditions to get laws passed that are actually appropriate for the global internet. The most important question is "is it the right thing" not - "is there a law for it".

Second, to require national law as a precondition would start to subjugate ICANN to national legislatures; part of the benefit of this new system of governance is that ICANN should be flexible to adopt rules/policies of its own choosing. The other road leads to individual government veto over ICANN. The same point is true of international law, although the persuasive power of a relevant global treaty is likely to be much greater than a single of collection of national laws.

Third, the fact that there is no national or international law can be used by the Board as a ground for declining to follow GAC advice.

In other words, we have a flexible situation where ICANN can choose the best option for the Internet.

The crucial element in the operation of the model is the role played by the ICANN board, which, as most know, is not obliged to accept that advice.
If it doesn't, it is obliged to attempt rapprochement, then explain itself in writing.

The real focus should therefore be on the way the board exercises that power, and, as part of that focus, on the controls by the multistakeholder community on the Board.
That is where the "accountability" focus should continue be directed.

It will be contentious on occasions, and it will involve political trade-offs from time to time - as all policy-making does with all other elements of the multi-stakeholder- model.
(Strawman, anyone?)

Its a great thing to have the governments of the world working in an ICANN committee. Its a bad thing if their requests are not, in a measured and careful way, subjected to the appropriate analysis and balancing with other elements of the multi-stakeholder input. Its not the GAC's fault if, in stretching its political muscle, it starts to ask for more and more concessions to its views. 

Its a bad thing too, if governments feel that genuinely appropriate measures it seeks in the public interest are defeated by special interest in ICANN, forcing them to abandon the GAC and seek better results via re-arranged Internet governance mechanisms.

Its a terrible thing if GAC requests are not met by a board that is resolute to maintain the whole of ICANN's integrity.

Its a tragedy if the community has insufficient accountability mechanisms to hold, and to keep the board to a proper accounting of its role in this balancing exercise.



On 24/02/2014, at 7:46 PM, David Cake wrote:

> On 21 Feb 2014, at 10:42 pm, Milton L Mueller <mueller at SYR.EDU> wrote:
>> -----Original Message-----
>>> while there are good reasons to distrust governments the important 
>>> resource behind governments is the rule of law including 
>>> administrative law that both enables and constraints government actions.
>>> I cannot imagine any form of democracy that could do without rule of law. 
>> Jeanette, Yes! The proper role for governments is to produce and enforce general laws/rules, hopefully rules that efficiently order and enable action (e.g., by upholding individual rights and protecting against their violation). 
>> The problem with governments' activities in the internet space is that they have deliberately shirked this role, and instead reached for a more arbitrary and inappropriate role as "public policy" maker. As our experience with the GAC has shown, goverments don't want to define objective, clear rules, they want to intervene on a discretionary basis based on political whims and power grabs which they call "policy."  "Policy" means: whatever I want at the moment.
> 	It is certainly notable also that GAC representatives often provide early warning that are not clearly based on domestic law or policy, and are applied inconsistently. 
> 	As an example, the Donuts application for the string .doctor received GAC Early Warnings that included one from the Government of Australia (a very prolific issuer of GAC Early Warnings) on the basis that .doctor was a regulated market - despite the title doctor being one generally unregulated by law in Australia, and generally considered entirely unproblematic if used in a way that clearly does not seem to be implying someone is a medical practitioner or otherwise the possessor of a doctorate or equivalent - for example, this high profile plumbing firm http://www.tapdoctor.com.au/ whose vans are quite distinctive, and surely not unknown to the bureaucrats who represent Australia in the GAC, as they operate in Canberra. Increasingly, many of the 'public policy positions' put forward by the GAC have no connection to domestic law, legal principle, or consistent precedent, but are a combination of opinion and lobbying. 
> 	The special pleading by the IGOs and INGOs is a particularly egregious example at the moment - the main driving force seems to be the lobbying on the basis of the argument that IGOs and INGOs are impoverished and rules that protect them will save them money, but if this same argument was put forward a reason for IGO/INGO acronyms to have special consideration that trademarks do not, it would never survive in the domestic policy environment of most GAC participants, including several of those that are pushing for it most strongly. 
>> I cannot remember how many times I have asked representatives of governments in the GAC: if you are so concerned about X and Y problems related to ICANN or the  Internet, why dion't you all get together and pass a treaty about it, which can then bind ICANN and other internet-related institutions? The answer is always the same; if it is not a sheepish silence it is "oh, that's too difficult, and besides we don't all agree on what the rule should be."
> 	Indeed - much GAC advice arises from a poor process that lets the strongly held opinions of a few GAC members prevail, even though it would never achieve real backing at treaty level. 
>> Never forget: the international system is anarchic. There is no real "international" law, at least not yet, because there is no real international government.  Therefore, power-based political bargaining fills the vacuum. That is why govts are especially dangerous in this context. The resistance to them is not some naïve and immature resistance to the constraints of the real world. It is a very realistic, experience-based understanding of how easily power can be abused in the transnational context. 
> 	Agreed - and in the case of iCANN, we can add a government process that is clearly a poor fit for the purposes for which it is being used. 
> 	Regards
> 		David
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